Nandlal Ram v. Hari Prasad — 1955 DIGILAW 11 (PAT)

Judgment 1. By an order of this Bench dated 25-1-1955, F. A. No. 228 of 1947 was disposed of in terms of the compromise petition so far as respondents 1 to 7 are concerned. As regards the other respondents, namely, respondents 8 and 0, it was ordered that the appeal should stand dismissed. We now proceed to examine the cross-objection filed in this appeal on behalf of plaintiff-respondents 1 to 7. The cross-objection is directed against defendants 1 to 4 and defendants 11, 17 and 18. It is also directed to some extent against defendants 5, 6 and 7, who are the appellants in the first appeal, but Mr. Raghunath Jha, who appears on behalf of the plaintiff-respondents 1 to 7, said that he would not press the cross-objection so far as defendants 5, 6 and 7 are concerned. Counsel stated that the matter has been compromised in the first appeal and so the cross-objection should be taken as not being pressed so far as defendants 5, 6 and 7 are affected. 2. We proceed to consider first the cross-objection as against defendants 17 and 18. The case of the plaintiffs is that Mt. Dukhni executed a sale deed, Ex. A(1) in favour of defendant 18, Mahabir Prasad Bangal, for a sum of Rs. 400 with regard to an area of 5 bighas 10 dhurs of land in Mauza Raipura. Two necessities are mentioned in the sale deed, namely, (1) payment of a debt due on a handnote to the extent of Rs. 200 and (2) payment of a decree in Rent Suit No. 2452 of 1938 to the extent of Rs. 212/8/-. There is evidence that the handnote was executed by the widow on the 15th of Aghan, 1346 in order to meet the expenses of the appeal arising out of Title Suit No. 3.18 of 1937. There is oral evidence of defendant 18 that the loan was advanced, to the widow for the purpose of meeting the cost of the appeal. It appears that soon after the death of Chaman Mandal, the husband of Mt. Dukhni, the plaintiffs brought a suit against her alleging that she was not the lawfully married wife of Chaman Mandal and the plaintiffs themselves claimed that they were in possession of the inheritance of Chaman Mandal as his legal heirs. Actually, plaintiff 1 claimed that he was the adopted son of Chaman Mandal. Dukhni, the plaintiffs brought a suit against her alleging that she was not the lawfully married wife of Chaman Mandal and the plaintiffs themselves claimed that they were in possession of the inheritance of Chaman Mandal as his legal heirs. Actually, plaintiff 1 claimed that he was the adopted son of Chaman Mandal. It is manifest that the widow had the necessity of defending her title and saving the estate from falling into the hands of the plaintiffs whose interest was merely the interest of the reversioners, an interest which was expectant on the death of the widow. Exhibit F is the endorsement on the back of the handnote to indicate that the debt was satisfied by the execution of the sale deed, Ex. A(a). There is further the evidence of D. W. 12 that there was a decree for rent which was satisfied by paying a sum of Rs. 212-8-0 in Court by a chalan dated 31-5-1939 (Ex. V(2)). Exhibit 8 is a petition by D. W. 12 for permission to deposit the amount in Court, & Ex. X is a certified copy of the suit register to show that the decree was satisfied in the manner alleged. Mr. Raghunath Jha on behalf of the plaintiff-respondents attempted to show that the sale-deed, Ex. A(1) was not executed for legal necessity, but we think that there is no substance in this argument, and the judgment of the trial Court on this point must be accepted as correct. The second sale-deed, Ex. A(2), was executed on 22-5-1939 by Mt. Dukhni in favour of defendant 17, Ratneshwar Rai, for an area of 2 bighas, 9 kathas and 15 dhurs of land. The consideration was Rs. 200, and the reason for the sale was that the widow had to pay a sum of Rs. 140-12-0 to Radha Mohan Singh. It also appears that a sum of Rs. 25 was spent by the widow on account of the sradh expenses of her husband, and another sum of Rs. 33-4-0 was spent for the purchase of seeds. There is also oral evidence that the handnote in favour of Radha Mohan Singh was executed by the widow in order to borrow money for the purpose of meeting the sradh expenses of her husband. There is hence ample evidence to support the finding of the learned Subordinate Judge that the sale deed, Ex. There is also oral evidence that the handnote in favour of Radha Mohan Singh was executed by the widow in order to borrow money for the purpose of meeting the sradh expenses of her husband. There is hence ample evidence to support the finding of the learned Subordinate Judge that the sale deed, Ex. A(2) was executed by the widow for the purpose of funeral and sradh ceremonies of the last holder of the estate. It cannot be disputed that these necessities are legal necessities, and it follows that the sale deed. Ex. A(2), cannot be challenged by the plaintiffs on the ground that there were no legal necessities justifying the transaction. 3. The next document which was impeached by Counsel on behalf of the plaintiff-respondents is Ex. A(6), which is a sale deed executed by Mt. Dukhni on 15-7-1940, in favour of Doulat Sah, defendant 11. The sale deed relates to an area of 16 bighas, 11 kathas and 6 dhurs of land of mouza Raipura, and the consideration for the sale deed was a sum erf Rs. 1,900/-. It appears that Chaman Mandal had executed a Sudbharna bond on 5-7-1932 in favour of Dwarkadas with regard to 31 bighas of land for a sum of Rs. 1,500/-. Out of this area of 31 bighas, the widow sold 16 bighas and odd to Doulat Sah in order to pay off the Sudbharna bond and also to release 14 bighas and odd of land from the burden of the Sudbharna bond. Counsel on behalf of the plaintiff-respondents addressed the argument that no interest was running upon the Sudbharna bond and there was no obligation on the part of the widow to redeem the mortgage. The argument was that the transaction was not justified by any legal necessity pressing upon the estate. In support of this contention Counsel placed much reliance upon a decision of this Court in -- Dasrath Singh V/s. Damri Singh, AIR 1927 Pat 219 (A). It was held by a Division Bench of this Court in that case that the reversioners right to redeem the usufructuary mortgage could not be jeopardised by the widow by the sale of the mortgaged property to the mortgagee. In reaching this conclusion, the learned Judges proceeded upon the view that the usufructuary mortgage carried no interest and there was no pressing interest which justified the widow in selling the mortgaged property. In reaching this conclusion, the learned Judges proceeded upon the view that the usufructuary mortgage carried no interest and there was no pressing interest which justified the widow in selling the mortgaged property. In our opinion, the authority of this decision is doubtful in view of the statement of law made by the Judicial Committee in -- Sardar Singh V/s. Kunj Bihari Lal, AIR 1922 PC 261 (B). In this case Mr. Ameer Ali drew a distinction between two sets of religious acts which are recognised by Hindu law in connection with the duties imposed upon a Hindu widow. One set of acts relates to the actual obsequies of the deceased full owner and periodical performance of the obsequial rites prescribed in the Hindu religious law which are considered as essential for the salvation of the soul of the deceased. The other set of acts relates to matters which although not essential or obligatory are still pious observances which conduce to the bliss of the deceaseds soul. It was held that as regards the first class of acts the powers of the Hindu widow who holds the property are much wider than in respect of the second class of acts which are simply pious and, if performed, are meritorious so far as they conduce to the spiritual benefit of the deceased. At pp. 264-265 Mr. Ameer Ali makes the following statement of law on this point. "There can be no doubt upon a review of the Hindu law, taken in conjunction with the decided cases, that the Hindu system recognizes two sets of religious acts. One is in connection with the. actual obsequies of the deceased, and the periodical performance of the obsequial rites prescribed in the Hindu religious law, which are considered as essential for the salvation of the soul of the deceased. The other relates to acts which although not essential or obligatory, are still pious observances which conduce to the bliss of the deceaseds soul. In the later cases this distinction runs clearly through the views of the learned Judges. The confusion which has arisen in this case arises from mixing up the indispensable or obligatory duty with a pious purpose, which, although optional, is spiritually beneficial to the deceased. In the later cases this distinction runs clearly through the views of the learned Judges. The confusion which has arisen in this case arises from mixing up the indispensable or obligatory duty with a pious purpose, which, although optional, is spiritually beneficial to the deceased. With reference to the first class of acts, the powers of the Hindu female who holds the property are wider than in respect of the acts which are simply pious and, if performed, are meritorious so far as they conduce to the spiritual benefit of the deceased. In one case, if the income of the property, or the property itself, is not sufficient to cover the expenses, she is entitled to sell the whole of it. In the other case she can alienate a small portion of the property for the pious or charitable purpose she may have in view." In our opinion, the payment of a deceased husbands debts by the Hindu widow falls within the first class of religious acts enunciated by Mr. Ameer Ali in AIR 1922 PC 261 (B). The payment of the debt is imposed as an essential duty upon the Hindu widow, and this is the principle upon which the alienation evidenced by Ex. A(6) in this case would be fully justified. The view which we have expressed is borne out by the decision of the Calcutta High Court in -- Ashutosh Sikdar V/s. Chidam Mandal, AIR 1930 Cal 351 (C). It was Held in that case that a payment of a husbands debt, though barred, is a pious duty on the part of the widow, and it is not necessary for the alienee to show in such a case that there is any danger to the estate in order to entitle the widow to incur debts, or to alienate the property of her husband in order to pay off statute barred debts. Applying this principle to the present case, we are of the opinion that the kebala, Ex. A(6), executed by Mt. Dukhni on 15-7-1940, validly conveyed the property to the transferee, defendant 11, and the argument of the plaintiff-respondents impeaching this transfer must be rejected as unsound. 4. We then come to three documents, Exs. A(8), A(10) and A(11) executed by Mt. Dukhni in favour of defendants 1 to 4. Exhibits A(10) and A(11) were both executed on 7-6-1940 for a total consideration of Rs. 4. We then come to three documents, Exs. A(8), A(10) and A(11) executed by Mt. Dukhni in favour of defendants 1 to 4. Exhibits A(10) and A(11) were both executed on 7-6-1940 for a total consideration of Rs. 4,000.00 and for a total area of 62 bighas. Exhibit A(10) was executed in favour of defendants 1 to 4 and Ex. A(11) was executed in favour of defendants 1 to 3 in order to satisfy the mortgage debt of Chaman Mandal himself, Chaman Mandal had executed a mortgage bond on 6-2-1933 for a sum of Rs. 4,000.00 and it was to satisfy this mortgage debt that the widow executed the two sale deeds. It was contended on behalf of the plaintiff-respondents that the property inherited by Mt. Dukhni was of considerable extent and it was the duty of the widow to satisfy the mortgage debt from the income of the properties and not by alienating any portion of the corpus. In support of this contention, learned Counsel referred to -- Mt. Mohamed Shumsool Hooda V/s. Shewukram, 2 Ind App 7 (PC) (D). At page 16 of the report, there is an observation of Sir Robert P. Collier that the transaction of the Hindu widow, Rani Dhun Kowur, could be supported only if it was shown that the transaction . was necessary in order to pay the debts of the testator and was for the benefit of the estate generally. It should be noticed, however, that Rani Dhun Kowur was not in the position of a Hindu widow, but she was the widow of the son of the testator who had conveyed the whole property by a document of testamentary character in favour of the said Rani Dhun Kowur, and upon a construction of the terms of the document it was held by the Judicial Committee that the estate conVeyed to the lady was analogous to the estate of a Hindu widow and it was not an absolute estate which would entitle her to alienate the property absolutely in favour of the transferees. The observation of Sir Robert P. Collier must, therefore, be read in the context of the material facts of that case and it has no bearing in deciding the validity of the kebalas, Exs. A(10) and A(11) executed by Mt. Dukhni in favour of defendants 1 to 4 in the present case. The observation of Sir Robert P. Collier must, therefore, be read in the context of the material facts of that case and it has no bearing in deciding the validity of the kebalas, Exs. A(10) and A(11) executed by Mt. Dukhni in favour of defendants 1 to 4 in the present case. We have already reviewed the law on this point, and in view of the fact that the widow was discharging the debt incurred by her husband Chaman Mandal under the simple mortgage bond of 6-2-1933, it is obvious that the two kebalas executed in favour of defendants 1 to 4 validly conveyed the properties to them. The reason is that the widow was discharging a pious obligation which falls within the first class of religious acts enunciated by the Judicial Committee in AIR 1922 PC 261 (B), to which we have already made a reference. 5. The next document which requires examination is Ex. A(8), which is a sale-deed executed by Mt. Dukhni in favour of Kamala Prasad Marwari, defendant 4. The consideration for which the document was executed was Rs. 500.00 and the recital in the said deed is that the transaction was necessary in order to meet "cost of cultivation, payment of miscellaneous debts and household expenses". The necessity for the sale is not very much apparent from the recital in the document, but there is oral evidence, which the Subordinate Judge has accepted, which proves that the amount was needed by Mt. Dukhni in order to satisfy certain rent decrees obtained by the Raj Darbhanga. Defendant 4 himself was examined in the trial Court, and in his evidence he stated that he deposited a sum of Rs. 425 under seven chalans dated 16-9-1940 in the Raj treasury. The balance of the consideration, namely, Rs. 75/-, was paid by the witness to Mt. Dukhni for meeting household expenses and for payment of small debts. The chalans have been filed in this case, and they are Ex. O series. These chalans show that on 16-9-1940, only ten days after the execution of the sale deed, defendant 4 deposited a total sum of Rs. 425 in the Raj treasury towards satisfaction of the rent decrees. It is argued by Mr. The chalans have been filed in this case, and they are Ex. O series. These chalans show that on 16-9-1940, only ten days after the execution of the sale deed, defendant 4 deposited a total sum of Rs. 425 in the Raj treasury towards satisfaction of the rent decrees. It is argued by Mr. Raghunath Jha on behalf of the plaintiff-respondents that the satisfaction of the rent decrees was not tantamount to proof of legal necessity unless the rent decrees had been taken out. in execution by the landlord. Counsel argued that there was no danger to the estate and so the sale-deed, Ex. A(8), could not transfer any title to defendant 4. We do not think that this argument is correct. The Raj Darbhanga had already obtained decrees for rent against the widow, Mt. Dukhni, in respect of the estate, and the existence of the rent decrees would in itself constitute a legal necessity sufficient to support the execution of the sale deed by Mt. Dukhni. This view is borne out by a decision of this Court in -- Ram Asre Singh v. Ambica Lal, AIR 1929 Pat 216 at p. 218 (E). It was held by the learned Judges that if there was in fact a rent decree obtained against the widow, she would be justified in selling her husbands estate in order to satisfy the decree, and the obvious reason was that once the decree was obtained, there was imminent danger to the property being sold up in execution of the rent decree. We do not, therefore, think that the widow should have waited till Raj Darbhanga had taken out execution proceedings and the mere existence of the rent decrees constituted a sufficient danger to the estate and justified the execution of the sale deed by the widow in favour of defendants 1 to 4 for raising the money to pay off the decretal amount of the Raj Darbhanga. The argument of Counsel for plaintiff-respondents must be rejected. 6. For all these reasons we hold that the cross- objection filed by the plaintiff-respondents 1 to 7 must be dismissed. The plaintiff-respondents must pay the costs to defendants 17 and 18 who have appeared through Mr. K. K, Singh. No one appears on behalf of defendants 1 to 4 and defendant 11 and there will be no order for costs so far as these defendants are concerned.